On June 3, 2021, the Court of Justice upheld the General Court’s judgment finding that a leniency applicant must provide evidence of new facts that expand the scope of the conduct to obtain partial immunity from fines under the Commission’s Leniency Notice.
On February 8, 2017, the Commission found that Eco-Bat, Campine, Johnson Controls, and Recylex participated in a buyer cartel in the battery recycling sector, and imposed a total fine of €68 million. Johnson Controls was granted full immunity for blowing the whistle on the cartel, while Eco-Bat and Recylex were granted 50% and 30% leniency reductions respectively. Recylex sought to annul the Commission decision before the General Court claiming various errors in the Commission’s fine calculation methodology. On May 23, 2019, the General Court dismissed the action in its entirety. Recylex appealed to the Court of Justice.
Court of Justice
Recylex requested a fine reduction larger than 30%, claiming that it provided information that the Commission used to expand the geographic scope and duration of the conduct. The expanded scope should therefore have been excluded from Recylex’s fine calculation pursuant to point 26 of the Leniency Notice.
The Commission disagreed on the basis that they already knew and held evidence of the expanded scope; Recylex’s information only supported those facts, which was reflected in the 30% leniency discount. In response, Recylex claimed that it is irrelevant whether the Commission was already aware of the expanded scope as the 2006 Leniency Notice (unlike the outdated 2002 version) does not explicitly require that the leniency applicant provides evidence of “previously unknown facts” to qualify for an increase in fine reduction.
The Court of Justice rejected Recylex’s appeal in its entirety. To obtain partial immunity, the leniency applicant cannot merely provide evidence that strengthens the Commission’s case; instead, it must enable the Commission to establish new facts which either increase the gravity or the duration of the cartel. This, according to the Court of Justice, follows the rationale of the 2006 Leniency Notice—it encourages potential applicants to bring forward evidence of larger scope of the conduct without additional fine exposure.
The judgment re-confirms that immunity, whether full or partial, is associated with new, rather than supporting, facts. Leniency applicants seeking to mitigate fine exposure should therefore strive to collect and submit as many new facts and evidence as is practically possible.
 Recylex and Others v. Commission (C-563/19) EU:C:2021:428.
 Commission Notice on Immunity from fines and reduction of fines in cartel cases, OJ 2006 C 298/17 (“Leniency Notice”).
 Car battery recycling (Case COMP/AT.40018), Commission decision of February 8, 2017.
 See, Leniency Notice, para. 22 “If the applicant for a reduction of a fine is the first to submit compelling evidence […] which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence.”